U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki B.,1 Complainant, v. John B. King, Jr., Acting Secretary, Department of Education, Agency. Appeal No. 0120151697 Agency No. ED2015FSA0008 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 20, 2015, dismissing a formal complaint of unlawful employment discrimination alleging a violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time period, Complainant worked with the Agency as an Information Technology (IT) Specialist through a corporate entity identified as "Amyx," which provides IT services to the Agency by contract. Complainant specifically worked with the Agency's Federal Student Aid program at its office in Washington, D.C. On December 13, 2014, Complainant initiated EEO Counselor contact.2 Informal efforts to resolve her concerns were not successful. On January 15, 2015, Complainant was issued a Notice of Right to File a Formal Complaint. On February 2, 2015, Complainant filed a formal complaint alleging the Agency subjected her to discrimination on the basis of disability and in reprisal for prior protected EEO activity when, on November 13, 2013, she was terminated from her position. On March 20, 2015, the Agency dismissed the formal complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency determined that Complainant did not have standing to pursue a claim of discrimination as a contract employee. The Agency also dismissed the formal complaint on alternative grounds, pursuant to 29 C.F.R 1614.107(a)(l). Specifically, the Agency stated that Complainant had filed a Notice of Charge of Discrimination, EEOC Charge No. 570-2014-00575 on February 18, 2014, and therefore her claim that was one that was already pending or had been decided by the Commission. On appeal, Complainant, through her counsel, argues that she was unlawfully terminated at the direction of Agency officials. Complainant provides extensive detail on the various Ma factors. Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)). Complainant emphasized that the Agency's Information Technology (IT) Manager (RMO2) had control over her termination because shortly after the Program Director at Amyx (RMO1) discussed Complainant's reasonable accommodation request with RMO2, RMO1 was allegedly instructed by RMO2 to "fire [Complainant] immediately." Complainant contends that when RMO1 asked RMO2 to reconsider her decision, she received the following response, "I don't agree. Follow my directions." Complainant argues that this action demonstrates that the Agency had ultimate control over her termination. Complainant contends that the Agency also incorrectly categorized her claim against Amyx, Inc., as filing the same claim twice. Complainant contends that the complaints are distinct because while they both involve her termination, one is against Amyx, Inc., a private employer, and the other is against the Agency, a government entity. Complainant seeks back pay, front pay, attorneys' fees and compensatory damages. In response, the Agency asserts that the record supports the conclusion that the Agency did not exercise sufficient control over Complainant's employment to render her an employee with standing to file a claim of discrimination. The Agency contends that it properly dismissed the claim for failure to state a claim. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim. EEOC Regulation 29 C.F.R. §1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. § 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment. The Commission has applied the common law of agency test to determine whether an individual is an agency employee versus a contractor. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)). The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Factors indicating that a worker is in an employment relationship with an employer include the following: 1. The employer has the right to control the manner and means by which the work is accomplished.3 2. The skill required to perform the work (lower skill points toward an employment relationship). 3. The source of the tools, materials and equipment used to perform the job. 4. The location of the work. 5. The duration of the relationship between the parties. 6. The employer has the right to assign additional projects to the worker. 7. The extent of the worker's discretion over when and how long to work. 8. The method of payment to the worker. 9. The worker's role in hiring and paying assistants. 10. The work is part of the regular business of the employer. 11. The employer is in business. 12. The employer provides the worker with benefits such as insurance, leave or workers' compensation. 13. The worker is considered an employee of the employer for tax purposes. Id. This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000). Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997)(available at www.eeoc.gov.), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint employers. Similar to the analysis set forth above, a determination of joint employment requires an assessment of the comparative amount and type of control the staffing firm and the agency each maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). Thus, a federal agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the criteria above, whether or not the individual is on the federal payroll. Id. For example, an agency may be considered an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at Coverage Issues, Question 2. We shall apply the Ma factors to the record before us, addressing each factor separately. Id. As a preliminary matter, we note that the EEO Counselor repeatedly, and unsuccessfully, attempted to obtain information from Agency officials about the events leading up to the termination of Complainant. The EEO Counselor noted that Agency officials were "evasive, uncooperative and provided little to no information." Factors 1, 3 - 7, 9 - 11 Indicate that Complainant may be a Joint Employee of the Agency The record reflects that while Amyx hired Complainant, the Agency had substantial control over the decision to hire her (factor 1). The Program Director at Amyx (RMO1) interviewed Complainant in early August 2013 and found her to be qualified. However, RMO1 then submitted Complainant's resume to the Agency's IT Manager (RMO2), the Agency's Senior Information Technology Specialist (RMO3) and the Acting EQTFM4 for final approval. On August 8, 2013, RMO1 hired Complainant after she had received approval from the Agency, specifically from RMO2 (factors 1, 7). RMO1 and RMO2 worked together to determine the terms of Complainant's employment. The Agency required Complainant to work onsite four days a week using Agency equipment and space (factor 4). The Agency allowed her to telecommute one day a week. RMO2 authorized the use of Complainant's badge and security clearance (factor 3). Complainant's position did not require her to hire or pay assistants, and she was not engaged in her own business while working at the Agency (factors 9, 11). RMO1 stated that she was responsible for controlling, disseminating, and approving Complainant's work assignments and tasks, but that daily tasks were left to Amyx's Team Lead, however there is no indication in the record that the Agency did not have the right to assign additional projects as it saw fit (factors 6, 7). There is also no indication that the work performed was not part of the regular business of the Agency (factor 10). The record shows that RMO2 was actively involved in Complainant's termination (factor 1). On October 23, 2013, Complainant met with RMO1 to discuss her disability and request a reasonable accommodation (a brighter and quieter environment). A full time telework proposal was also discussed. On October 24, 2013, RMO1 called RMO2 about the request. RMO1 states that RMO2 was unhappy with the suggested full time telework proposal. RMO1 contends that RMO2 stated "if we let one person do it, then everyone is going to want to do it." According to RMO1, RMO2 suggested that Complainant could sit upstairs where the lighting was brighter and there was less noise. This was deemed a possible solution. However, RMO1 states that later that evening, she received a message from RMO2 directing her to "fire [Complainant] immediately" (factors 1, 7). RMO1 attempted to discuss the situation further with RMO2, suggesting the decision was premature. RMO2 allegedly responded, "I don't agree. Follow my directions" (factors 1, 7). Complainant was terminated on November 13, 2013. Complainant served in her position for approximately two months before being terminated. The Agency asserts that Amyx made the ultimate decision to terminate Complainant. However, the record supports a finding that an Agency official, RMO2, had substantial input and control over the decision. RMO2 denied knowledge and involvement in Complainant's termination. However, we note that the EEO Counselor stated that RMO2 was "extremely evasive (took 6 weeks to respond to emails and telephone requests)...," and that "... RMO 2 was indifferent and her written statement was inconsistent with what was discussed during the telephone conversation with the counselor the previous day." Factors 2, 8, 12, 13 Indicate that Complainant may be a Contractor The record seems to indicate that Complainant's work required a high level of expertise (factor 2). RMO1, from Amyx, signed her timesheets and would have approved vacation leave (factor 8). RMO1 stated that when Complainant was considered for employment, conversations between Complainant, an Amyx executive and RMO2 were set up to determine Complainant's salary, but ultimately Amyx set and paid Complainant's salary (factor 8). Information in regards to factors 12 and 13 are not discernible from the record, however, as Amyx paid Complainant's salary, it is likely that it also provided benefits and considered Complainant an employee for tax purposes. Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's position, and especially her termination, to qualify as her joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. Finally, we find the Agency's alternative dismissal grounds improper. The Agency had previously stated that it was also dismissing the formal complaint pursuant to 29 C.F.R 1614.107(a)(l), stating that Complainant had previously filed a Notice of Charge of Discrimination in the Commission private sector process (EEOC Charge No. 570-2014-00575) on February 18, 2014, and therefore her claim was one that was already pending or had been decided by the Commission. The record demonstrates that while Complainant did file such a charge, it was solely against Amyx. As Complainant's attorney argues on appeal, this charge is a separate and distinct discrimination claim as one was filed against a government entity, the Agency, and the other against a private employer, Amyx. CONCLUSION The Agency's decision to dismiss the formal complaint is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations February 9, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Initially, Complainant contacted the EEO Office shortly after being terminated on November 13, 2013. However, Complainant was purportedly informed by an EEO Counselor that because Complainant was a contractor she should file an EEO complaint with the contract company, Amyx, instead. Because of this correspondence between Complainant and the EEO Counselor, a waiver to the 45-day EEO counselor limitation period was granted. 3 Another factor is whether the employer can discharge the worker. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000). This factor is especially significant in termination cases like the one at issue. 4 This abbreviation was not defined in the record. The role of Acting EQTFM is unknown. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151697